Constitution

Originally published @ Cato Unbound, as part of a series of essays on ending the government’s failed war against cannabis

Ending Cannabis Prohibition in America

The now forty-year-old organized effort to reform cannabis laws in America is on the precipice of major socio-political reforms with approximately fifty percent of the population no longer supporting the nation’s seventy four-year-old Cannabis Prohibition. While reformers have made tremendous gains, notably at the state level, which have placed them at this crossroads, obstacles to full cannabis legalization are abundant and deep-seated in Congress and the federal government.

This paper seeks to identify important areas of concern for cannabis law reform, highlight the factors that have created a positive environment for reform, recognize who are the last and largely self-interested factions in society who fervently defend and/or prosper from Cannabis Prohibition’s status quo, and what are some of the strategic decisions that reformers can implement that will hasten an end to Alcohol Prohibition’s illegitimate, long-suffering cousin.

Important Areas Of Concern For Cannabis Law Reformers

There are several areas of concern for reformers, notably the federal vs. state disconnect in Washington, D.C.; citizens’ illogical fear of cannabis more than alcohol; and the political box canyon potentially created by medical cannabis.

The numbers that frame this political quandary: 75% of the public support medical access to cannabis; 73% support decriminalizing cannabis possession for adults and now 50% of the population support outright legalization (California, where one out of eight U.S. citizens live, nearly passed a legalization voter initiative last fall, only losing by three percentage points). So it can be asserted with confidence that ‘soft’ cannabis law reforms of medical access and decriminalization enjoy overwhelming public support and that the ‘hard’ reform of legalization has now moved into the majority (The recent Gallup poll showed only 46% of citizens continue to support Cannabis Prohibition).

However, even with clear polling data to help guide them away from restrictive policies no longer supported by the public, the Obama Administration’s fifth attempt this October since he took office to introduce ‘digital democracy’ into policymaking decisions by creating a public website where citizens and organizations can post online petitions seeking changes in the ways government works, the president was once again confronted by the publics’ number one question: Why do we have Cannabis Prohibition in 2011? Shouldn’t it be ended as an ineffective public policy?

Recent polls and focus group data gathered by cannabis law reform advocates post last year’s near-victory in California for Prop. 19 (the initiative that would have legalized cannabis) revealed an important and troubling public perception that reformers need to largely overcome to be successful: Almost fifty percent of the general public in California—where the issue of reforming cannabis laws have been vetted like no other place on earth since the late 1960s— illogically fears cannabis more so than alcohol products.

Forgive the pun, but reformers have to do a better job ‘normalizing’ cannabis use such that its responsible use causes no greater concern in the public’s eye than the responsible use of alcohol. Otherwise, it is hard to imagine cannabis becoming legal anytime soon if fifty percent of the public fears the product and the consumers who enjoy it.

Medical Cannabis’ Political Limitations –

While NORML is the sui generis of medical cannabis in the United States (first suing the Drug Enforcement Administration to reschedule cannabis as a medicine in 1972, NORML vs. DEA), the organization recognizes that absent substantive changes in the federal government’s Controlled Substances Act (and controlling International treaties envisaged and championed by America at the United Nations), qualified medical patients accessing lawful cannabis with a physician’s recommendation in states that authorize such is an untenable conflict with the existing federal laws that do not, under any circumstance, allow for the therapeutic possession, use or manufacture of cannabis.

The rapid increase in public support for cannabis law reform is made possible by five factors:

1)Baby Boomers are now largely in control of most of the country’s major institutions (media, government, entertainment, education and business) and they have a decidedly different perception and/or relationship with cannabis than the World War II generation (AKA, the Reefer Madness generation), who, were largely abstinent of consuming cannabis.

2)These crushing recessionary times have forced many elected policymakers to drop their support for rigorous enforcement of Cannabis Prohibition laws. Numerous states and municipalities have adopted half measures towards legalization, notably decriminalizing possession or adopting a lowest law enforcement priority strategy.

3)Medical cannabis first becoming legal in 1996 by popular vote in California. After the nation’s largest and most politically important state adopted medical marijuana guidelines, sixteen states and the District of Columbia have followed suit setting up a terrific state vs. federal government conflict that has already visited the U.S. Supreme Court twice (2002 and again in 2005).

4)The advent of the Internet in the mid 1990s allowed citizens to communicate directly with each other at very low costs, create large social networks of like-minded community members, avoid mainstream media (which readily serves as a lapdog, rather than government watchdog in the war on some drugs) and educate themselves with verifiable and credible information about cannabis (rejecting government anti-cannabis propaganda programs like the controversial DARE program in the public schools and the Partnership for Drug-Free America’s ineffective ad campaigns in the mainstream media).

One of the principle lessons in the Art of War is to ‘know thy enemy’. Therefore, it behooves cannabis law reformers to understand what small, but powerful factions in American society actively work to maintain the status quo of Cannabis Prohibition:

1) Law enforcement – There is no greater strident voice against ending Cannabis Prohibition than from the law enforcement community—from local sheriff departments to the Fraternal Order of Police to State Police departments to federal law enforcement agencies.

Many of these bureaucracies in turn provide most of the funding to so-called ‘community anti-drug organizations’ to create the false appearance of local grassroots opposition to any cannabis law reforms.

3) Alcohol, tobacco and pharmaceutical companies –

Historically, alcohol, tobacco and pharmaceuticals companies play both ends of the middle when opposing cannabis law reforms for the simple reason that all of these industries will lose a portion of their market share to legal cannabis.

–Bipartisan support to end Cannabis Prohibition is a political given. However, since the 1990s every single major cannabis law reform initiative that has been successful has been funded by one of two liberal, politically divisive billionaires (George Soros and Peter Lewis). Reformers need to achieve greater political and funding diversity to significantly advance cannabis law reforms in today’s highly divided national political landscape.

–Recognize that most all of the major policy reforms are first achieved at the local and state level, in time putting due political pressure on the federal government to follow suit.

–Cannabis law reformers need to better work in concert with other like-minded political and social organizations that also oppose failed government programs or seek redress for grievances against the government.

–Reformers need to create a far more simpler reform narrative that juxtaposes ‘pot tolerant’ citizens against ‘intolerant’ citizens in the same manner that Alcohol Prohibition pit ‘wets’ against ‘drys’.

–Reformers need to keep directing public and media attention to the serious de-stabilization of the country’s borders created by the tremendous illegal succor of Cannabis Prohibition in countries like Mexico.

–Continuing what cannabis law reformers have been successfully achieving for forty years, which is to say winning a ‘hearts and minds’ campaign in the population, and recognizing that elected policymakers in Washington are not going to be able to lead the country out of it’s long-suffering Cannabis Prohibition without public advocacy that is derived from effective, politically diverse and bottoms up grassroots stakeholdership.

By Kellen Russoniello, George Washington University Law student and NORML Legal Intern

The recent push for implementing drug testing for potential welfare recipients across several states has revealed at least two things: 1. The policy is not economically sound; and 2. It really brings out the hypocrisy in some elected officials.

Last summer, Florida implemented a law requiring all welfare applicants to submit to a mandatory drug test before receiving any benefits (Applicants had to pay the $30 for the test themselves, only to be reimbursed later if they passed. For more information, see this NORML blog post.). Not surprisingly, the program was brought to a quick halt. Back in October of 2011, a federal judge ruled that the Florida drug testing law was unconstitutional.

Further, in the few months that the program was up and running, it was shown that only 2% of welfare applicants tested positive for drugs. About 9% of the general population reports using drugs in the past month. So much for Governor Rick Scott’s theory that the poor use drugs more often than the rest of the populace.

Even more striking is the amount of money that Florida lost from this poorly designed policy. The Tampa Bay Online estimated that $3,400 to $8,200 in savings would be recognized every month from drug testing welfare applicants. As it turns out, the program is estimated to have cost Florida over $200,000. From any perspective, this policy can be regarded as a failure.

Despite the lessons that can be learned from Florida’s debacle, several states are still considering implementing programs to subject their impoverished population to drug tests. The Huffington Post reported that twelve states attempted passing legislation in 2011 that would require drug tests for welfare applicants. Florida, Missouri, and Arizona were the only three that succeeded. However, Pennsylvania has just begun a pilot program in Schuylkill County that subjects certain applicants to drug tests. By tailoring their laws to apply only to applicants that have aroused reasonable suspicion, these states are hoping to avoid constitutional problems like those that ultimately invalidated the Florida law and a similar Michigan law in 2000 (which was affirmed in 2003). Several states have also tried to drug test those who seek unemployment benefits, state employees, and private sector employees, including the passage of an Indiana law that requires drug testing for those in a state job-training program.

When pressed, legislators that support this policy try to justify their position by claiming that the taxpayers should not subsidize drug addiction. But taxpayers pay for much more than just welfare. Some of their money goes towards paying their legislators’ salaries. Wouldn’t this same rationale justify drug testing legislators? This has been the tactic of many Democratic state legislators to thwart Republican efforts to test welfare applicants. In fact, a Republican State representative in the Indiana General Assembly recently pulled a bill after another representative amended it to include drug testing for legislators. The bill was reintroduced and passed by the Indiana General Assembly the following week, which included a section requiring legislators to submit to random drug tests. Missouri and Tennessee currently have bills that would require legislators to submit to drug tests. These were introduced in reaction to a slew of bills aimed at requiring drug tests on different areas of the population. It seems that the legislators who want to drug test the poor aren’t really convinced of the merits of the program when applied to themselves.

Hopefully, state politicians will come to their senses as knowledge about the failure of Florida’s policy becomes more well-known. But given this country’s track record on drug policy, I wouldn’t recommend holding your breath.

To see a hilarious summary of Florida’s drug-test-the-poor policy, watch this Daily Show clip, which includes Florida State Representative Scott Plakon’s and Governor Rick Scott’s reactions to being asked to take a drug test.

The NORML Board of Directors officially endorsed a cannabis legalization initiative at the recently concluded Annual Meeting that has qualified for the November ballot in the state of Washington.

For the next nine months national NORML and its dozen in-state chapters will provide logistical, strategic, communications and fundraising support for Initiative 502, whose co-petitioner is NORML Advisory Board member and best-selling author/TV host Rick Steves.

*Citizens in Colorado will likely have the opportunity to vote for a binding voter initiative that will legalize cannabis for responsible adult use, cultivation and sales.

*Citizens in Massachusetts too will likely get to send a strong reform message to the federal government this fall when they vote in a binding voter initiative that will legalize the use of cannabis for qualified patients for medical use and allow regulated retail sales.

Also, cannabis law reform advocates in numerous states are trying to join the states listed above in qualifying reform-minded initiatives on their state ballots too. Those states are:

It should be abundantly clear by now to federal legislators and the executive branch that while they unwisely continue to support a failed public policy like Cannabis Prohibition–when over 50% of the public now support long overdue cannabis law reforms–citizens (and an increasing number of elected policymakers) at the state level will continue to steadily increase political pressure on the federal government to capitulate on Cannabis Prohibition and embrace demonstrably more free market and Constitutional-friendly alternative public policies that actually benefit citizens and governments, and in turn, public health and safety too.

This upcoming election season will once again confirm that this political trend in cannabis law reform is long-standing, sustainable and poised for multiple political victories at the state level in the short years to come.

NORML Attorneys Matt Kumin, David Michael, and Alan Silber, have filed suit (read here) in the four federal districts in California to challenge the Obama Administration’s recent crackdown on medical marijuana operations in the Golden State. Aided by expert testimony from NORML Deputy Director Paul Armentano and research from California NORML Director Dale Gieringer, the suits seek an injunction against the recent federal intrusion into state medical marijuana laws at least and at most a declaration of the unconstitutionality of the Controlled Substances Act with respect to state regulation of medical marijuana.

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The NORML attorneys allege the federal government has engaged in entrapment of California patients and their caregivers. They point to the courts’ dismissal of County of Santa Cruz, WAMM et al. v. Eric Holder et al. where the Department of Justice (DOJ) “promised a federal judge that it had changed its policy toward the enforcement of its federal drug laws relative to California medical cannabis patients.” So after 2009, California providers had reason to believe that the federal government had changed its policy. The legal argument is called ‘judicial estoppel’, which basically means that courts can’t hold true to a fact in one case and then disregard it in another.

Kumin, Michael, and Silber also argue the government has engaged in ‘equitable estoppel’, which most people commonly think of as ‘entrapment’. That is to say, you can’t bust a person for committing a crime when the authorities told him it wasn’t a crime to do it!

Under established principles of estoppel and particularly in the context of the defense of estoppel by entrapment, defendants to a criminal action are protected and should not be prosecuted if they have reasonably relied on statements from the government indicating that their conduct is not unlawful. That principle should be applied to potential defendants as well, the plaintiffs in this action. Such parties, courts have noted, are “person[s] sincerely desirous of obeying the law”. They “accepted the information as true and [were]…not on notice to make further inquiries.” U.S. v. Weitzenhoff, 1 F. 3d 1523, 1534 (9th Cir. 1993).

The US Constitution figures prominently in the legal challenge as well. The 9th Amendment says that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The NORML attorneys argue that threatening seizure of property and criminal sanctions violates the rights of the people to “consult with their doctors about their bodies and health.”

The 10th Amendment provides that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The NORML attorneys argue that the States have the “primary plenary power to protect the health of its citizens” and since the government has recognized and not attempted to stop Colorado’s state-run medical marijuana dispensary program, it cannot suggest Colorado has a state’s right that California does not.

The 14th Amendment says that all citizens have equal protection under the law. The NORML attorneys argue that the federal government:

1. Actively provides cannabis for medical purposes to individuals through its own IND program.
2. Actively allows patients in Colorado to access medical cannabis through a state-licensing system that allows individuals to make profit from the sales of medical cannabis.
3. Actively restricts scientific research into the medical value and use of cannabis to alleviate human suffering and pain.

Thus, according to Kumin, Michael, and Silber, the government can’t be allowing Colorado medical marijuana commerce, engaging it its own IND program that mails 300 joints a month to four federal medical marijuana patients yet squelching all attempts to study medical value of marijuana, then have a rational basis for shutting down medical marijuana dispensaries in California. Under the 14th Amendment, the feds can’t treat Californians differently than Coloradoans and differently than four US citizens who get legal federal medical marijuana.

Finally, while acknowledging that Raich v. Gonzales 545 US 1 (2005) set the precedent that the Constitution’s Interstate Commerce Clause does allow the feds to prosecute California’s medical marijuana, the NORML attorneys argue:

…it is still difficult to imagine that marijuana grown only in California, pursuant to California State law, and distributed only within California, only to California residents holding state-issued cards, and only for medical purposes, can be subject to federal regulation pursuant to the Commerce Clause. For that reason, Plaintiffs preserve the issue for further Supreme Court review, if necessary and deemed appropriate.

We will keep you posted on all updates related to this groundbreaking lawsuit. Archive of our interview with the lead attorneys in this case is available in our “Audio/Video” section on The NORML Network.

Click here to join NORML today and help us in the fight to legalize marijuana.

by Byron Andrus, NORML Foundation legal intern and second year law student at George Mason University School of Law

Recently, NORML supported the efforts of Congressmen Ron Paul (R-TX) and Barney Frank (D-MA) in their sponsorship of H.R. 2306, ‘Ending Federal Marijuana Prohibition Act of 2011’, a House bill which seeks to remove federal penalties for marijuana offenses and thus allow for the individual states to set their own marijuana policies. While the bill will likely fail to reach even a committee hearing due to the efforts of another Texas Republican and Judiciary Committee Chairman, Lamar Smith, its introduction has raised some interesting constitutional questions and has given more food for thought to legal scholars interested in the oft-forgotten 10th Amendment.

The 10th Amendment reads rather plainly: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Essentially, this means that the powers not granted to the federal government by the Constitution, which are very limited in number, are left to the state legislatures. This may seem obvious, but judges and constitutional scholars have continuously debated about what “the powers not delegated to the United States” are.

Controversially, the power of the federal government to regulate interstate commerce granted to it by Article 1, Section 8 of the Constitution has been interpreted by the Supreme Court to mean that the feds may regulate nearly anything that has an effect on interstate commerce. In the landmark case of Gonzales v. Raich, the Supreme Court ruled that a woman who grew marijuana plants on her property for her own medical use was participating in “interstate commerce.” Justice Clarence Thomas, in his dissent, astutely observes, “no evidence from the founding suggests that “commerce” included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.” This common sense reading of “interstate commerce” would prevent the federal government from harassing peaceful citizens who are in compliance with state laws, and is a good example of a “10th Amendment” approach to the issue of marijuana legalization.

The Founding Fathers took great pains to choose carefully the words they inserted into the text of the Constitution. Nowhere in the document is the federal government granted the power to regulate intrastate commerce (commerce within one state). Furthermore, “commerce” refers to transactions in which goods or services are exchanged. Ms. Raich did not intend to buy, sell, trade, or give away her marijuana, she only intended it to be used for her own medical purposes—despite this and the clear omission by the founders of a federal primacy regarding states’ economies under the 10th Amendment. The real world application of the Gonzales decision means that those with serious illnesses like Ms. Raich are not legally permitted to grow and consume their own medicine—even if state laws allow for such.

The Commerce Clause has also been invoked when armed federal agents decide to raid dispensaries in states where medical marijuana is legally permitted to be sold. The latest memo from the Department of Justice, known as the ‘Cole Memo’, suggests that the federal government will continue to raid dispensaries, even ones that are operating in accordance with state laws. This contradicted a 2009 memo written by the former Deputy Attorney General David Ogden, in which he suggested that federal resources should not be wasted on marijuana enforcement as long as dispensary owners remained in “clear and unambiguous” compliance with state law. This reversal in policy now suggests that the federal government can target those involved in the medical marijuana industry, even those in compliance with state law.

In addition to the constant threat of arrest and prosecution, the potential loss of one’s business creates a great deal of uncertainty in the markets of states where medical marijuana is legal. Investing in a dispensary has become a risky proposition, and it has led to dispensary owners already heavily invested in the business to wonder whether or not they will be able to open their doors. This uncertainty causes patients to go without their medicine and causes business owners to flounder under unclear regulations. Removing the federal penalties for marijuana offenses by passing H.R. 2306 would completely eliminate this problem, as patients and business owners would simply need to comply with state laws, no longer having to worry about getting their doors kicked in by federal agents. A “10th Amendment” approach to marijuana policy would finally ease the fear and uncertainty that are part and parcel of federal Marijuana Prohibition.

An expansive reading of the federal government’s ability to regulate interstate commerce seems to be at odds with the 10th Amendment. Since the federal government may not regulate intrastate commerce, it follows that this is a right reserved to the states. The division of powers in our federal system was intended to prevent an overreach of federal power. Unfortunately, the ever-expanding federal government now sees fit to regulate everything from the amount of water you can have in your toilet to what kind of light bulbs consumers can buy to what plants you may grow on your property—the laws of the states be damned if necessary.

H.R. 2306 puts forth the common sense proposition, consistent with the 10th Amendment, that it should be the prerogative of each state to determine for itself whether or not to legalize marijuana for either medical or recreational purposes—a tried and true, and constitutionally sound approach that previously worked to end the folly of another federal government overreach, Alcohol Prohibition. A return by federal judges to interpreting the plain meaning of “interstate commerce,” coupled with an emphasis on the 10th Amendment, would mark an excellent starting point in getting the federal government out of the way and allowing state governments to make their own informed decisions on marijuana policy.